Legal Services and Laws of Sri Lanka


SLR-1988 Vol.1-P191

SLR - 1988 Vol.1, Page No - 191

HEBTULABHOY & Co. LTD.

V.

A. L. M. FERNANDO, HIGH COURT JUDGE & OTHERS

SUPREME COURT.

ATUKORALE, J. H. A. G. DE SILVA, J. AND G: P. S. DE SILVA, J.

S.C. REFERENCE No. 2/87

C.A. APPLICATION No. 875/87,

D. C. COLOMBO No. 2316/Spl.

JANUARY 12, 13, 14 AND 22, 1988.

Constitution, Articles 111(2), 114, 125(1)-High Court Judge appointedbytheJudicialServiceCommissionasAdditional
District Judge to hear specified cases-Validity of such appointment.

The 1st respondent as District Judge heard and reserved order in a case where the petitioner was plaintiff. Before theorder
was delivered the 1st respondent was appointed as a High Court Judge byHisExcellencythePresident.Subsequently,the
Judicial Service Commission appointed the : 1st respondent as an Additional District Judge to. deliverjudgmentincertain
cases heard by him as District Judge. The petitioners' case was that when the.1st respondent wasalreadyfunctioningasa
High Court Judge, the Secretary to the Commission (5th respondent) communicated the decision to the 1strespondentstating,
`"I hereby appoint you as Additional District Judge, Colombo to deliver judgment in cases No...... in addition to yourother
duties as pleasedbytheJudicialServiceCommission."The1strespondentsubsequentlydeliveredjudgmentinthe
petitioner's case making an order against him. He applied to the Court of Appeal to quash the order on thegroundthatthe
appointment by the J.S.C. was invalid.
Since matters relating to the interpretation of the Constitution were involved, the Court of Appeal referred the following
questions to the Supreme Court for determination under Article 125 (1) of the Constitution:

(i) "As the 1st respondent at the material time was holding the office of Judge of the High Court havingbeensoappointed
previously by, His Excellency the President under Article 111(2) of the Constitution, wastheJudicialServiceCommission
vested with, power under the Constitution to appoint the 1st respondent as an Additional- District Judge of Colomboaswell
in order to deliver judgment in District Court Colombo case No. 2316/Splorwasthesaid-Judicial-ServiceCommission
precluded from doing so?
(ii) Could the 5th respondent by virtue of the provisions of Article .114(4) oftheConstitutionhaveappointedthe1st
respondent at that time holding the post of a Judge of the High Court, also Additional District Judge of Colombo hepurports
to have done by letter of appointment dated 11th September 1986?
(iii) Having regard to the provisions of the Constitution is it legally competent for a holder of the officeofHighCourt
Judge duly appointed to that office by His ExcellencythePresidentundertheprovisionsofArticle111(2)ofthe
Constitution to function as a 'Judicial officer' as thatexpressionisusedinArticle114oftheConstitutionupon
appointment to such office by the Judicial Service Commission for the ad hoc purpose of continuing andconcludinganycase
commenced by him previously as such judicial officer?"

Held-
(1) The Judicial Service Commission was vested with power under Article 1:14(1) read with Article 114(6) of theConstitution
to appoint the 1st respondent, who at the time had been appointed and. was holding the office of a Judge of theHighCourt,
as - Additional District Judge. of Colombo in order to deliver judgment in case No..2316/Spl.oftheDistrictCourtof
Colombo.
(2) The 5th respondent has no such power under-Article l 14(4) oftheConstitution.Intheinstantcase,however,the
appointment of the 1st respondent was made notbyhimbutbytheJudicialServiceCommissionwhichappointmentwas
communicated by him to the 1st respondent by fetter XI.
(3) It is legally competentfor the holder: of the office of Judge of the High Court tofunctionasa'judicialofficer
upon being appointed as such by the Judicial Service Commission to enable him to deliverjudgmentand/ortocontinueand
conclude a case commenced by him previously as a ' judicial officer .

Cases referred to :
(1) Saravanamuttu v. Saravanamuttu (1960) 61 NLR 1.
(2) Bilimoria v: Commaraswamy C. A. Application No. L/A 89/79 - D. C. Colombo No. 2579/RE - C.A.-Minutes of 16.01. 1980.
REFERENCE to the Supreme Court. under Article 125 (1) of the Constitution.
Dr. H. .W. Jayewardene Q.C. With G, F. Sethukavaler P.C.-L. C Seneviratne P.C., K. Kanag lswaran P. C., K. M. B. Ahamed A.
A.
M. llliyas and Harsha Amerasekera for the Petitioner.
S. Marsoof, Senior State Counsel, as amicus curiae for A.G. Tony Fernando, State Counsel, for the 5th Respondent.
H. L. de Silva P.C. with Nihal Fernando with Miss L. N. A. de Silva for the 6th Respondent.

ATUKORALE, J.
This is a reference made to this Court by the Court of AppealintermsofArticle125oftheConstitutionseekinga
determination of three questions relating to the interpretation of the Constitution arising out of a proceeding filed bythe
petitioner in the Court. of Appeal for an order in the nature of a writ of Certiorari. Upon, the materialplacedbeforeus
the following facts emerge: The petitioner on or about `21.7.1983 filedactionNo.2316/Spl.intheDistrictCourtof
Colombo against the 6th- and 7th respondents alleging an infringement by them of his rights in respect of the trade markNo.
31953 "RABEA" of which he was the registered owner. In his plaint he prayed .for, inter alia,apermanentandaninterim
injunction restraining the two respondents from applying or using the said word "RABEA" 'in any form ofpacketorbagfor
sale, distribution and/or export of tea. The- District Court issued, ex parte, an interim injunction asprayedforbythe
petitioner and later on made order refusing the 6th respondent's applicationtosuspendtheinteriminjunctionforthe
limited purpose of enabling him to export a specified quantity of tea to Egypt. The validity of thisorderofrefusalwas
challenged by the 6th respondent in the Court of Appeal by way of Revision - C.A. No. 1052/83-as well as by way ofLeaveto
Appeal C.A:/L.A. No. 86/83. The Court of Appeal made, ex parte, order in the Revision application tosuspendtheoperation
of the interim injunction to the 'extent and purpose sought for by the 6th respondent. The petitioner thenmovedtheCourt
of Appeal to have this order revoked. Having failed in this attempt he moved this, Court by way of Special LeavetoAppeal-
S.C. Spl. L/A No. 59/83-to have the same revoked. On 5.12. 1983 at the hearing into this application this Court directedthe
Court of Appeal to hear and determine the two applications` which were pending before it i.e., the Revision and the Leaveto
Appeal Applications: The Court of Appeal after hearing the parties made order on 23.1.1984 refusingbothapplicationsvide
[1984], 1 Sri L.R. 129. The 6th respondent then appealed from this order of the Court of Appeal to this Court which,without
proceeding to hear the appeal on the merits, made order directing that the inquiryintotheapplicationtodissolvethe
interim injunction and the trial of the action which were both then pending in the District Court be proceeded with. Thetwo
orders made by this Court were, no doubt, with a view to expeditiously terminating the proceedings thatwere,thenpending
in the District Court. The inquiry and trial came up before the 1st respondent, who wastheAdditionalDistrictJudgeof
Colombo, having been duly appointed thereto by the Judicial Service Commission in' terms of Article 114 of-theConstitution.
After several dates of hearing the 1st respondent on 20-.6.1986 made order reserving his judgment and, orderfor15.9.1986.
On 26.6.1986: the 1st respondent was duly appointed a Judge of the High Court by His Excellency thePresidentintermsof
Article 111 (2) of the Constitution. Consequent on this appointment the 1strespondentwaspostedasHighCourtJudge,
Badulla. The 1st respondent on all relevant dates thereafter continuedtoholdofficeofaJudgeoftheHighCourt.
According to document 5 R 1 (an extract of the minutes of the meeting of the Judicial Service 'Commission-hereinaftercalled
the Commission-held on 29.8. 1986 bearing the sub-heading "Part-heard cases of Judicial Officers" the Commissiondecidedon
that date. to appoint the 1st respondent as Additional District Judge of Colombo to deliver order,amongstothers,inthe
said: action No. 2316/Spl. of the District Court ofColombo.On.11.9.1986the5threspondent,theSecretarytothe
Commission, addressed the following letter to the 1st respondent:
Appointment
I hereby appoint you as Additional District Judge Colombo to deliver judgment in the cases No. 2316/Spl in additiontoyour
other duties as pleased by the Judicial Service Commission:"

On 15.6:1987 the 1st respondent delivered judgment and order in the said case.Hedismissedthepetitioner'sactionand
awarded the 6th respondent compensation in a surfs of Rs. 8 'million by way of reconvention:

The petitioner appealed to the Court of Appeal from this judgment of the 1st respondent (X4) and further applied to havethe
tame revised (X5). On 12.8.1987 he also filed in the Court of Appeal an application (No. 875/87) praying for the issue ofan
order in the nature of a writ of Certiorari quashing the judgment and decree and for art order directing that theactionbe
heard de novo before a duly appointed District Judge who is a judicial officer within the meaningof.Article114ofthe
Constitution. The ground urged in the writ application for quashing the' judgment and, decree is that the appointment ofthe
1st respondent as Additional` District: Judge of Colombo by letter X1 was contrary to law and null and void and ofnolegal
effectmainly for the reason that a Judge of the High Court cannot in law beappointedatthesametimetobeorto
function as a District or Additional District Judge and/or be empowered to exercise two jurisdictions concurrently. Thishas
also been averred as one of the grounds for setting aside the judgment of the 1st respondent both in the petitionofappeal
as well as in the Revision application pending in the Court of Appeal. Mr. A. -L. M.Fernando,JudgeoftheHighCourt
Badulla, is the 1st respondent to the writ applicationthe Honourable members of the Commission are the2nd,3rdand4th
respondentsthe Secretary to the Commission is the 5th respondentthe party in whose favour the award ofcompensationwas
made is the 6th respondent and the 7th respondent is the then defendant in the said action whoonlyblendedandpacketted
the tea of the 6th respondent and made no appearance and took no part at the trial.
No notice of the writ application appears to have been ordered by the Court of Appeal to issue on the 2nd, 3rd -and. the4th
respondents. Notice was-ordered to-be issued on the other respondents and on the Attorney-General as amicuscuriae.Onthe
notice returnable date learned State Counsel appeared for the 5th respondent and stated to court that he does notintendto
file objections. Learned: Senior State Counsel appeared as amicus on behalfoftheAttorney-General.LearnedPresident's
Counsel appeared for the. 6th respondent. On this day learned President's Counsel forthepetitioner'intimatedtocourt
that it was necessary for both the petitioner as well as the 6th respondent to submit tocourttheconstitutionalmatters
upon which a determination by the Supreme Court would be required. On 24.11. 1987 learned President's Counsel forthe-:6th
respondent tendered in open court a written statement containing 3 questions which he submitted shouldbereferredtothe
Supreme Court for determination. On 30.11. 1987 the Court of Appeal made the following, reference totheSupremeCourtin
terms of Article 125(1) of the Constitution

"TO HIS LORDSHIP THE CHIEF JUSTICE AND THE OTHER. HONOURABLE JUDGES OF THE SUPREME COURT
1. This is an application for an order in the nature of a writ of certiorari to quashajudgmentanddecreeofthe1st
respondent dated 15th June 1987 delivered by him as Additional District Judge of Colombo in District Court ColomboCaseNo.
2316/Spl
2. For the purposes of this reference we consider it useful to set down here the factsenumeratedbelowwhicharetobe
gathered from the papers filed by the plaintiff petitioner in this court.
a. ...............
b. ...............
c. ...............
d. ...............
e. ...............
3. The petitioner upon a writing filed in these proceedings has suggested two questions tobereferredtotheHonourable
Supreme Court for determination under Article 125(1') of the Constitution` and the6threspondentlikewisehassuggested
three questions.
4. Submissions have been made to us by Dr. H. W. Jayewardene O.C. Counsel for theplaintiff-petitionerandMr.H.L.de
Silva P.C. Counsel for the 6th respondent. We have also heard Mr. Marsoof, Senior State Counsel, appearing for theAttorney-
General as amicus curiae and Mr. Fernando, State Counsel, appearing for the 5th respondent. The contention of MessrsMarsoof
and Fernando is to the effect that this 'application is untenable in-law and that, therefore any questionsrelatingtothe
interpretation of the Constitution cannotbethoughttoariseinthecourseofproceedingsinanysuchuntenable
application.

5. We are, however, of the considered view that there are questions here relating to the interpretation oftheConstitution
and that they arise in the course of proceedings in this Court within the meaning of Article 125(1) of theConstitution.In
terms of Article 125(1) of the Constitution the questions set out below are respectfully referred for determinationtoYour
Lordships' Court and we respectfully request that upon a determination of such questions Your Lordships' Courtdomakeany
consequential order as the circumstances of the case may require in terms of Article 125(2) of the Constitution:

(i) As the 1st respondent at the material time was holding the office of Judge of the High Courthavingbeensoappointed
previously by His Excellency the President under Article 111 (2) of the Constitution, wastheJudicialServiceCommission
vested with power under the Constitution to appoint the 1st respondent as an Additional District Judge of Colombo as wellin
order to deliver judgment in District Court Colombo case No. 2316/Spl. or was the said Judicial Service Commissionprecluded
from doing so?
(ii) Could the 5th respondent by virtue of the provisions of Article 114(4)oftheConstitutionhaveappointedthe1st
respondent at that time holding the post of a Judge of the High Court, alsoAdditionalDistrictJudgeofColomboashe
purports to have done by letter of appointment dated 11th September 1986?
(iii) Having regard to the provisions of the Constitution is it legally competent for a holder of the officeofHighCourt
Judge duly appointed to that office byHisExcellencythePresidentundertheprovisionsofArticle111(2)ofthe
Constitution to function as a 'judicial officer' as thatexpressionisusedinArticle114oftheConstitutionupon
appointment to such office by the Judicial Service Commission for the ad hoc purpose of continuing andconcludinganycase
commenced by him previously as such judicial officer?"

It would appear from the submissions made before us by learned Senior State Counsel thathiscontentionintheCourtof
Appeal was that the writ application is untenable in law for the reason that it is not open to thepetitionertochallenge
collaterally the validity of acts done by a de facto judge under colour of office and that therefore thereferencetothis
Court of the constitutional questions would be premature and unnecessary. It is also pertinent at thisstagetonotethat
although in the statement of objections filed in the Court of Appeal on behalf of the 6th respondent it was statedthatthe
writ application did not constitute in law a direct challenge to the 1st respondent's appointment by the Commission butthat
it merely averred its invalidity as a ground for quashing the 1st respondent's judgment which in law, in theabsenceofan
application to declare the appointment itself null and void or to quash the same or challenging at the appropriatetimethe
1st respondent's authority to function as Additional District Judge, was tantamount to not a directbutonlyacollateral
attack upon the appointment and jurisdiction of the 1st respondent and that for this reasonthewritapplicationwasnot
maintainable in law, yet no objection was raised on behalf of the 6th respondent in the Court of Appeal atanystagetoa
reference of constitutional matters arising out of the writ application to the Supreme Court for itsdetermination.Onthe
contrary the 6th respondent in his statement of objections enumerated 3 matters as requiring to be referred to-theSupreme
Court for determination. I make reference to this fact at this stage of myjudgmentinviewofthesuggestionmadeby
learned President's Counsel for the 6th respondent as well as learned Senior State Counsel for the5threspondentthatwe
should, without proceeding to make our determination upon the reference, direct the Court of Appeal, in thefirstinstance,
to hear and determine the issue regarding the maintainability of the writ application, a course which, it was urged ontheir
behalf, would obviate this Court from making constitutional pronouncements unless theywereabsolutelynecessary.Several
decisions (American, Indian and local) were cited iii support of this contention.Whilstappreciatingtheforceofthis
submission I do not, however, think it prudent, in the special circumstances of this case, toagreetosuchacourseof
action. Bearing in mind the voluminous nature of the evidence recorded in this action and the multitudeanddiversenature
of the legal proceedings filed that have been either disposed of or are still pending, the latter of which havebeenmainly
directed at showing that the judgment of the 1st respondent is devoid of any legal effect because of his allegedlydefective
appointment, and taking into account the delay and expense already incurred and are likely tobefurtherincurredinthe
event of this court, at this stage, refraining from making a determination on the constitutional issues and alsoconsidering
the fact that the parties to the dispute regarding the alleged infringement of trade mark had agreed in the CourtofAppeal
that certain constitutional issues do arise for determination bythisCourt,Ithinkiteminentlydesirableandeven
necessary that we should proceed to make our determination upon the 3 constitutional questions referred to this Court bythe
Court of Appeal.
Adverting, firstly to the second formulation aforementioned by the Court of Appeal itappearstomethatwhilstonthe
material placed before the Court of Appeal, namely document X1, the question so formulated by it is correct, yet inviewof
documents 5111 and 5112 which have for the first time been produced before us it nowtranspiresthatthereisafactual
inaccuracy in this formulation. 5111 which is an extract ofthemeetingoftheCommissionheldon29.8.1986andthe
authenticity of which I have no reason to doubt establishes quite clearly that it is the Commission that decidedtoappoint
the 1st respondent as Additional District Judge to deliver judgment in the said District Court action. This issupportedby
5112, the extract of the Gazette notification dated 21.8.1987 in which the appointment was published.Asthegenuinessof
these two documents was not challenged I accept them as constituting proof of the fact that the 1st respondent'sappointment
as Additional District Judge, Colombo, to deliver judgment in the said action was made by theCommissionandnotthe5th
respondent. X1 communicating the appointmenttothe1strespondenthasbeenwordedveryunhappily,theappointment
purporting to have been made by the 5th respondent, who as Secretary of the Commission enjoyed no power of appointmentother
than a power of appointment delegated to him by the Commission in terms of Article 114(4) of the Constitutionpriortoits
amendment by the 11th Amendment to the Constitution of 6th May 1987. Under Article 114(4), whether before or afterthe11th
Amendment, the 5th respondent had no power to appoint a person to the substantive post of an Additional DistrictJudge.The
appropriate wording of the Secretary's letter communicating an appointment duly made by the Commissionhasbeenreproduced
by Basnayake C.J. in his judgment in Saravanamuttu v. Saravanamuttu (1) which, I think, could still be followed inthecase
of such appointments. Properly worded X 1 should have read that the Judicial Service, has been pleasedtoappointthe1st
respondent as Additional District Judge, Colombo to enable judgment to be delivered in case No.2316/Spl,oftheDistrict
Court of Colombo. In the context of the foregoing facts the 2nd question, as formulated by the CourtofAppeal,wouldnot
arise for our determination.

I shall now turn to the 1st question inthereference,namely,theconstitutionallegalityorotherwiseofthe1st
respondent's appointment by the Commission, of which, in view of the Gazette notification 5R2, this Court must takejudicial
notice. This is the substantial matter arising for our determination. Article 114(1)oftheConstitutionvestsinthe
Commission the power, inter alia, of appointment of 'judicial officers' which expression, for the purposesofArticle114,
is defined in sub-Article (6) as follows:
""judicial officer" does not include a judge of the Supreme Court or of the Court of Appeal or of the High Court.

In contrast to the definition of the expression 'judicial officer' contained in Article 170 which includes personswhohold
office as Judge of the Supreme Court, of the Court of Appeal and of the High Court, sub-Article (6) of Article114givesa
restrictive meaning to the same expression for the purposes of that Article. It excludes from the purview of Article 114the
Judges of the Supreme Court, of the Court of Appeal and of the High Court. The contention of learned Queen's Counsel forthe
petitioner is that the power of appointment conferred on the Commission under Article 114 does not extendtothepowerof
appointing as a 'judicial officer' a person holding the office of a Judge of the Supreme Court or of the Court ofAppealor
of the High Court and that, therefore, the Commission had, in the circumstances of this case, no powertoappointthe1st
respondent, who at the time of such appointment on 11.9.1986 was a Judge of the High Court, as a 'judicial officer',namely,
as Additional District Judge. Placing very much reliance on the definition of judicialofficerinArticle114(6)which
seeks to exclude, inter alia, a Judge of the High Court he maintained that the Commission is powerless to appoint a Judgeof
the High Court as a judicial officer, and that, therefore, the 1st respondent's appointment was bad. I amunabletoaccept
this contention. There can be no doubt that a District or Additional District Judge is a judicial officer within themeaning
or Article 114(6). Thus undoubtedly the appointment of the 1st respondent as anAdditionalDistrictJudge(priortohis
appointment as a Judge of the High Court) by the Commission was a valid appointment. It is equally clear that theCommission
has no power to appoint a person (whether already a judicial officer within the meaning of Article 114 (6)ornot)tothe
office of a Judge of the High Court or of the Court of Appeal or of the Supreme Court. Such an appointment can onlybemade
by His Excellency the President under Article 111 (2) or Article 107 (1) as the case may be. Thequestiontheniswhether
the Commission is empowered to appoint or precluded from appointing the 1st respondent as anAdditionalDistrictJudgeof
Colombo in terms of Article 114(1) while he was holding the office of Judge of the High Court having beenappointedthereto
by His Excellency the President under Article 111 (2). In my view the definition of judicial officer in Article114(6)does
not, expressly or impliedly, prohibit the Commission from making the appointment. In the case of.aJudgeoftheSupreme
Court or of the Court of Appeal Article 110 (2) of the Constitution expressly prohibits him from performing any otheroffice
(whether paid or not) or accepting any place of profit or employment. - But in the case of a Judge of theHighCourtthere
is no similar prohibition in the Constitution. It is, in my view, erroneous to construe the definition of 'judicialOfficer'
in Article 114(6) as precluding the Commission from appointing a person already holding the office of aJudgeoftheHigh
Court as a judicial officer. The definition does not purport to prescribe thecategoriesorclassesofpersonswhoare
ineligible for appointment as judicial officers by the Commission but only stipulates the categories ofjudicialofficeto
which the Commission may not make appointments. Whilst Article 107 (1) deals with the appointment of JudgesoftheSupreme
Court and of the Court of Appeal and Article 111 (2) deals with the appointment of Judges of the High Court, Article 114(1)
deals with the appointment of judicial officers other thanthosereferredtoinArticles107(1)and111(2).This
construction gains support from the marginal note to Article 114 which reads 'appointment to otherjudicialoffices'which
in the context of Articles 107 (1) and 111 (2) can only mean to judicial offices other than those referred tointhosetwo
Articles. The purpose and effect of the definition of judicial officer in Article 114(6) is to circumscribetheclassesof
judicial office to which the Commission could lawfully make appointments. This object has beenachievedbyexcludingfrom
the definition the offices of Judges of the Supreme Court, of the Court of Appeal and oftheHighCourt,appointmentsto
which could only be made by His Excellency the President. Whilst the definition of 'judicial officer'containedinArticle
170 embraces every type of judicial office the distinction sought to bedrawninthedefinitionofthisexpressionin
Article 114(6) is between two categories of judicial office, namely, the offices inrespectofwhichHisExcellencythe
President is the appointing authority and those in respect of which the Commission is the appointing authority. Thereisno
constitutional impediment to His Excellency the President appointing, for instance, a District or AdditionalDistrictJudge
as a Judge of the Supreme Court or of the Court of Appeal or of the High Court. Equally there seemstometobenosuch
impediment to the Commission appointing a Judge of the High Court to be a District or Additional District Judgealthoughin
the case of Judges of the Supreme Court and the Court ofAppealtheprovisionsofArticle110(2)wouldoperateasa
constitutional bar to the Commission making such appointments. I am therefore of the viewthatthecontentionoflearned
Queen's Counsel for the petitioner that the power of appointment vested in the Commission by virtue of Article 114(1)does
not extend to the power to appoint a Judge of the High Courtasajudicialofficerisunsustainable.Inmyviewthe
Commission was vested with the power under the Constitution to appoint the 1st respondent asanAdditionalDistrictJudge
and Article 114 (1) read with Article 114 (6) did not preclude the Commission from making the appointment. I answerthe1st
question referred for our determination accordingly. I may add this identical question arose for consideration bytheCourt
of Appeal in Bilimoria v. Coomaraswamy (2). In that case after the trial commenced in the District Court before theDistrict
Judge he was appointed a Judge of the High Court by His Excellency the President. Thereafteron23.11.1978theJudicial
Service Commission appointed him as Additional District Judge for the purposeofhearingandconcludingthatparticular
case. Objection was taken before him on the ground that he had no jurisdiction to hear and conclude thecase.Heoverruled
the objection. On an application for leave to appeal from this order of theAdditionalDistrictJudge,itwasurgedon
behalf of the petitioner by Mr. H. L. de Silva (learned President's Counsel appearing for the 6th respondent inthepresent
proceedings before us) that a question relating to the interpretation of the Constitution arose in relation tothevalidity
or otherwise of the appointment of the Additional District Judge by the Judicial ServiceCommission.TheCourtofAppeal
rejected this submission and held that the application of Article 114 would lead to the conclusion that theappointmentwas
a valid one. Accordingly leave to appeal was refused. Learned Queen's Counsel appearing for thepetitionerinthepresent
proceedings before us appeared for the respondent in that application before the Court of Appeal.Havingmyselfassociated
with that judgment in the Court of Appeal I am happy to be able to state that a fuller consideration oftheissueinthis
case has convinced me that the view expressed by the Court of Appeal upholding the validity of the appointment is correct.

I now turn to the last question in the reference. What is sought to be ascertained thereisthelegalcompetenceofthe
holder of the office of a Judge of the High Court to function as a 'judicial officer' upon anappointmentmadetheretoby
the Commission having regard to the provisions of the Constitution. The specific constitutionalprovisions,ifany,which
relate to this matter have not been specified in the reference. Nor has our attention been invitedatthehearingtoany
constitutional provision pertaining thereto other than those which have already been considered by me in relation to the1st
question aforementioned. It seems to me that the ambit of the two questions (the 1st andthe3rd)andtheconstitutional
provisions applicable thereto are the same. I would therefore, in accordance with my answer to the 1st question,answerthe
last question in the affirmative. It was urged upon us by learned Queen's Counsel that the Commission had no powertolimit
judicial power or its exercise when appointing a 'judicial officer' which, he alleged, was what the Commission preciselydid
by appointing the 1st respondent to deliver judgment in specified cases. Objection was taken by learnedPresident'sCounsel
to this question being raised for the first time in this Court without it beingreferredbytheCourtofAppealfora
determination. I think this objection is sound and must be upheld. However upon a perusaloftheappointmentofthe1st
respondent by the Commission I can perceive no such limitation or curtailment of judicial power or anykindofrestriction
in its exercise. I agree that the Commission can neither limit nor extend, in the termsoftheappointmentorotherwise,
powers which the law confers on or vests in the office to which a 'judicial officer' is appointed.Theappointmentcarries
with it all the powers and jurisdictions which the law vests in the office to which the appointment ismade.Anypurported
limitation or extension of power in the appointment is thus bad and of no legal consequence. The note in theremarkscolumn
of the 1st respondent's appointment to the effect that the appointment is to enable him to deliver judgment in certaincases
is only explanatory of the appointment and does not, in any way, constitute a limitation of the powers of ortheirexercise
by the 1st respondent.
On the basis of the above reasoning this Court determines the questions referredtoitbytheCourtofAppealinthe
following manner:

1. The Judicial Service Commission was vested with power under Article 114(1) read with Article 114(6)oftheConstitution
to appoint the 1st respondent, who at the time had been appointed and was holding the office of a Judge oftheHighCourt,
as Additional District Judge of Colombo in order to deliver judgment in case No. 2316/Spl. of the District Court of Colombo.
2. The 5th respondent has no such power under Article114(4)oftheConstitution.Intheinstantcase,however,the
appointment of the 1st respondent was made notbyhimbutbytheJudicialServiceCommissionwhichappointmentwas
communicated by him to the 1st respondent by letter X 1.
3. It is legally competent for the holder of the office of Judge of the High Court to function as a 'judicialofficer'upon
being appointed as such by the Judicial Service Commission to enable him to deliver judgment and/or to continue andconclude
a case commenced by him previously as a 'judicial officer'.

In the light of the aforesaid determination made by this Court, the Court of Appeal is directed to make order dismissingthe
application of the petitioner bearing No. C.A. Application No. 875/87 for a Writ of Certiorari with costs therein payableby
the petitioner to the 5th and 6th respondents.TheRegistrarofthisCourtwillforwardthisdeterminationandthe
consequential order to the Court of Appeal.

H. A. G. DE SILVA, J. -I agree.

G. P. S. DE SILVA, J. -I agree.

Case sent back with answers to questions referred.


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